Appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York after a jury trial before Charles S. Haight, Jr., Judge, for narcotics offenses in violation of 21 U.S.C. §§ 841(a) (1) and 846.
Kaufman and Kearse, Circuit Judges, and Mishler, District Judge.*fn*
Defendant Larry Esdaille appeals from a judgment entered in the United States District Court for the Southern District of New York after a jury trial before Charles S. Haight, Jr., Judge, convicting him on three counts of narcotics violations: conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846 (1982), distribution of cocaine, in violation of 21 U.S.C. § 841(a) (1) (1982), and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2 (1982). He was sentenced to two years' imprisonment on each count, to be served concurrently, and a special parole term of three years following completion of his prison term. On appeal, Esdaille contends principally that the trial court erred in its refusal to permit him to refute a law enforcement agent's identification of him by demonstrating to the jury, without exposing himself to cross-examination, that he had a heavy Caribbean accent. Finding no merit in Esdaille's arguments, we affirm.
The evidence presented by the government consisted primarily of the testimony of New York City undercover police officer Jose Santiago, who testified that he had purchased cocaine from Esdaille, and the two policemen who thereafter arrested Esdaille. An issue raised at the trial was the identification of Esdaille as the person from whom Santiago had purchased the cocaine.
Taking the evidence in the light most favorable to the government, the facts were as follows. At about 7:00 p.m. on August 21, 1984, Santiago approached Esdaille and another man and, posing as a narcotics user, asked Esdaille where he could get some "blow," street slang for cocaine. Esdaille asked Santiago how much he wished to purchase and Santiago replied, "How much you got?" Esdaille said, "I could get you whatever you want." Santiago indicated that he wanted half a gram, for which he would pay $50. Esdaille said he would take Santiago to a place to get the cocaine if Santiago would give him $3. Santiago offered $2 and Esdaille agreed. The man with Esdaille assured Santiago that the cocaine that Esdaille would supply was of very high quality.
Leaving the other man behind, Esdaille then led Santiago to the second floor of a tenement two blocks away. Santiago paid Esdaille $50 in marked bills for the cocaine, and Esdaille instructed Santiago to wait at the top of the stairs. As Santiago watched, Esdaille went to an apartment door on the second floor and knocked. A voice from within the apartment asked who was at the door; Esdaille responded and was let in.
While Santiago waited in the hallway, one Bienvenido Cuevas, who was eventually indicted with Esdaille, entered the building. When Cuevas reached the second floor, he too knocked on the apartment door and, after giving his name, entered the apartment, leaving the door slightly ajar. Santiago then overheard a conversation among three male voices. One said, "There's a guy in the hallway, who is he with?" Another responded, "He's with him," and the third stated, "Yes, he's waiting for me." A short time later, Esdaille emerged from the apartment and gave Santiago a tin-foil packet containing cocaine. Santiago gave Esdaille $2 as they had agreed.
Santiago and Esdaille walked to the corner, where they parted company. Santiago went to his car and radioed other members of his unit a description of Esdaille (a black male, approximately 5'-7" tall, wearing jeans and a black shirt with red tips on the collar), and the location where he had last seen Esdaille. The other officers were initially unable to locate Esdaille. Within five minutes, however, Santiago spotted him near the corner where he had left him. Santiago radioed the information to his team and watched as the officers arrested Esdaille.
Immediately thereafter, Santiago returned to the building where Esdaille had sold him the cocaine and observed Cuevas and one Alberto Guzman, also eventually indicted with Esdaille, in front of the building engaging in what appeared to be narcotics transactions with persons who stopped by. Cuevas and Guzman were arrested; Cuevas was found to have in his possession $20 of the marked money Santiago had paid to Esdaille.
Later that evening, following issuance of a search warrant, the apartment from which Esdaille had supplied Santiago with the cocaine was searched. The apartment contained no signs of habitation, virtually no furniture, and no operable appliances or plumbing. The search revealed money, ...